When looking for work, do I have to inform the company that is going to employ me that I have a disability?
No one is obliged to declare their state of health when they look for employment. However, Article 15 of the Occupational Hazard Prevention Law stipulates that employers are required to adapt the workplace to the person; or in other words, to the specific physical and personal needs of each worker.
If a worker has a disability, employers should therefore adapt their workplace to their personal circumstances. Otherwise, they might incur liability in the eyes of the Labour Inspectorate.
If a worker does not report his or her disability, this may therefore prove detrimental in such a way that it could even mean the termination of the employment contract due to an infringement of good faith, since the company was not informed of the disability.
It should also be noted that there are numerous subsidies for employing workers with disabilities, and companies sometimes look for workers with disabilities to improve their competitiveness by integrating diversity into their workforce and/or benefiting from these subsidies, as well as to meet the required minimum of 2% in favour of people with disabilities equal to or greater than the 33% established by law for Spanish companies (or those established here) whose workforce exceeds 50 workers.
Summarising: There is NO express legal obligation for workers to inform their employers of the existence of a disability, though this seems to contradict the general principle of good faith that is required in a labour relationship, but the decision is ultimately a personal matter.
Do you recive any kind of funding or benefit for employing a worker with a disability?
Yes. Subsidies for employing people with disabilities are regulated primarily in Law 43/2006 of 29 December on Improving growth and employment.
The amount of subsidy will depend of the characteristics of the person with a disability, as well as the type of contract chosen by the employer.
Is the company required to adapt the workplace to the disability of a worker?
As a general rule, Article 4.2.d) of the Workers’ Statute establishes that workers have a basic right to their physical integrity and an adequate safety and hygiene policy. For its part, Article 15.d) of Law 31/1995 on Occupational Hazard Prevention establishes as a principle of prevention the adaption of the workplace to the person. This means, as we said above, that it is the obligation of the employer, and therefore the correlative right of the worker, to adapt the workplace to the personal circumstances of the worker.
To favour this adaption, subsidies have been legally established to help employers adjust the workplace, regulated in Royal Decree 1451/1983 on selective employment and measures for encouraging employment of workers with a disability.
Is it possible to reduce the working day for a worker with disability due to the disability?
Generally speaking, there is no special working day established in the Workers’ Statute for people with a disability. If a person wants to reduce his or her working day on the basis of a disability, strictly speaking there is therefore no legal cause to do so based exclusively on a disability.
However, it is possible to request a modification to the working day in implementation of the general principle of the right to their physical integrity and an adequate safety and hygiene policy, as set out in Article 4.2.d) of the Workers’ Statute. For its part, Article 15.d) of Law 31/1995 on Occupational Hazard Prevention establishes as a principle of prevention the adaptation of the workplace to the person.
Thus, if workers can prove through medical reports that it is better for their health to have shortened working days, they could require their employers to reduce their hours, and if the employer does not do so, they could even claim grounds for termination of the employment contract, in implementation of the provisions of Article 50 of the Workers’ Statute, because if a company commits a serious breach of its obligations, which include to protect the physical integrity of its workers, it is possible to go an Industrial Tribunal to have the termination of the employment contract approved due to the company’s breach of contract. In this case, the tribunal would order the company to pay the worker the compensation due for unfair dismissal envisaged in Article 56 of the Statute of Workers.
A different, but related supposition, is when workers have a person with a disability under their direct care, in which case Article 37.5 of the Workers’ Statute effectively recognises the workers’ right to reduce their working day in order to attend to this person.
If workers with a disability have to go to regular medical consultations, does the company pay them fot these absences?
Article 37.3 of the Workers’ Statute sets out a list of circumstances for paid leave (paid by the employer). However, this precept does not include attending medical consultations and/or rehabilitation.
Despite the lack of generic regulation in the Workers’ Statute, there is scope for collective negotiation (sector-specific collective agreements) in order to expand upon the circumstances for paid leave.
In fact, it is normal practice to include in collective agreements the right, whether limited or unlimited, to paid leave for workers in the case of attending medical consultations, generally through an annual allowance of hours set aside for this purpose.
Is it possible to receive a disability pension and work at the same time?
Article 141 of Royal Legislative Decree 1/1994, approving the Revised Text of the General Social Security Law, establishes that pensions for total permanent incapacity to work will not prevent the exercise of activities that, whether lucrative of not, are compatible with the condition of the pensioner and do not represent a change in his or her capacity to work for the purposes of review.
The problem lies in determining what activities are compatible with the pensioner’s condition, and which represent a change in his or her capacity to work, and amount to an “improvement” that can affect the benefits received. There is no a priori list of activities that are compatible with the condition of a person with a disability; rather, it is the pensioner who, in each case, must report the work he or she is going to do to the National Social Security Institute, in order to request “authorisation” for the compatibility of the job with the pensioner’s state of health. At any rate, it is advisable to find a job and subsequently, but always before starting work, reporting this job and its working conditions to the National Social Security Institute, so that this organisation can indicate whether the work is compatible with the pensioner’s state of health, in order to avoid any unpleasant surprises that could even result in the withdrawal of the pension.